INTRODUCTION

The international rule of law subjects the international order to the principles of the rule of law – a concept that originates in domestic frameworks – and externalises its rationales to the relations between states and other subjects of international law. One of the main principles of the rule of law requests the law to be equally enforced by an independent judiciary. For this purpose, the international legal framework has shouldered national courts with a major responsibility to enforce international humanitarian and criminal law. In accordance with this structure, domestic courts, which constitute an important pillar of the international judicial enforcement mechanism, have two judicial functions: they operate as agents of the international legal systems, and as conventional domestic institutions. While the international judicial system, composed of national and international courts, has been established, international law has also continuously been enforced by political actors, which have been traditionally confined to that role through the exercise of diplomacy. From a rule of law perspective, it has been hoped that the growing practice of courts would gradually replace the political enforcement of international law, and that the proper function of national courts in their application of international law, along with the work of international courts, will dictate the extent to which the international order is governed by the international rule of law. This chapter examines the function, in a post-conflict context, of one of these national judicial actors: the Serbian War Crimes Chamber.

In 1993, as a reaction to atrocities in the wars in the former Yugoslavia, unprecedented in Europe since World War II, the international community established the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY), mandated under Chapter VII of the UN Charter to try those responsible for such crimes. Although the Statute of the ICTY (Article 9) establishes its jurisdiction with primacy over the national courts, it has never been implied that it limits their responsibility in prosecuting war criminals. Each state of the former Yugoslavia has retained its own jurisdiction over the crimes falling under the ICTY Statute and its own obligation, both under international and national laws, not to leave such crimes unpunished.